MEC dealt a huge blow in bid to challenge R10.4 million payment

THE Western Cape High Court has turned down Department of Infrastructure MEC Tertuis Simmers’ latest bid to appeal a R10.4 million judgment in favour of Tempani Construction.

The court also denied his request to appeal the entire judgment and order issued on September 15.

This recent decision is a major blow in the department's ongoing legal fight over payment for the Delft community day centre (Delft project), which was finished nearly six years ago.

The court order followed an arbitration process, in which the MEC was ordered to pay the construction company the sum of R10,420,365.61 plus VAT. The project was completed in August 2017. 

Despite an adjudicator's determination that payment was due, the MEC has repeatedly refused to honour the debt. 

The MEC, however, maintained the argument that the parties had agreed to a two-tiered dispute mechanism, allegedly through an addendum contract that included an adjudication and arbitration process.

However, Tempani Construction never signed this addendum and only agreed to an adjudication mechanism in terms of Rule 6.2.2 of the Joint Building Contracts Committee (JBCC) Adjudication Rules.

Consequently, the court determined that an unsigned addendum to the building contract was invalid due to it not being signed by both parties. Despite receiving a demand, the department has not made payment of the amount due.

During litigation, it was evident that the addendum contract on which the MEC relied was only signed on behalf of the MEC. 

Referring to her previous court order, Judge Constance Noluthando Nziweni, said that in Tempani’s main application, the company sought relief on the grounds that the parties had agreed to resolve their disputes only by an adjudication mechanism.

“The relief that is sought by (Tempani) is directed squarely towards making the adjudicator’s award final and a definite determination upon the subject between the parties,” Judge Nziweni  said. 

“These facts, in and of themselves, tend to support and confirm that Tempani in its case, postulated a position that the parties agreed exclusively to adjudication as their method of dispute resolution, thereby ruling out arbitration.”

Judge Nziweni said that if a two-tiered system were the standard or default position, then it would not have been necessary to draft the arbitration addendum in the first place. 

“The assertion that this court altered the default two-tiered system of dispute resolution by making the adjudication award final is factually incorrect. 

“(The MEC) is simply attempting to manufacture compelling reasons to suit its own agenda, rather than relying on valid legal grounds or facts presented in the case. They are trying to create justification where none exists inherently within the evidence or established law.”

Reacting to the judgment, counsel for Tempani, Sean Pienaar SC at Enderstein Malumbete Inc, said: “On 25 November 2025, I wrote an email to the State Attorney advising that they have no excuse not to make payment, even in the event of an appeal, and that Tempani intends to bring an application to enforce payment in terms of Section 18 of the Superior Court’s Act. This section allows a court to enforce a judgment in spite of the fact that there is a pending application for leave to appeal to the Supreme Court of Appeal.”  

Enquiries to Simmers were acknowledged but could not be answered by the deadline. 

Cape Times